[JURIST] US Senate Democrats announced their continued support Tuesday for a US Sentencing Commission [official website] decision to give retroactive effect [JURIST report] to sentencing guidelines that would narrow the disparity between sentences for offenses involving powder and crack cocaine, rejecting Department of Justice arguments against the retroactivity because the courts could be overwhelmed with inmates appealing their sentences. The sentencing disparity has long been politically controversial, as crack cocaine sentences disproportionately levied against blacks are traditionally up to 100 times more severe than powder cocaine sentences more often levied against whites. Revised sentencing guidelines took effect November 1, and the Sentencing Commission voted in December to give retroactive effect to the provision. Retroactivity will take effect on March 3, 2008.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) criticized [statement text] testimony given by Attorney General Michael Mukasey [official profile; JURIST news archive] to the House Judiciary Committee last week that the proposed guidelines would result in the early release of hundreds of violent criminals:

Most disappointing is this administration's failure to support even modest reforms of unjust, overreaching mandatory drug penalties. Last week the new Attorney General testified before the House Judiciary Committee in ways designed to raise fear and create the false impression that 1,600 violent gang members and dangerous drug offenders will be instantaneously and automatically set free to prey on hapless communities. As the Attorney General, himself a former Federal judge, should have known, and as he had to concede when questioned before that Committee, no one can be released without a hearing before a Federal judge who is obligated to evaluate each case and to consider factors such as the criminal history and violence. And the Justice Department participates in those hearings.

Mukasey's testimony [JURIST report; statement, PDF] before the House Judiciary Committee suggested he would ask Congress to enact legislation to prevent the new crack cocaine guidelines from taking retroactive effect, though he indicated that he may support the shorter recommended prison sentences for first-time, nonviolent offenders:

Retroactive application of these new lower guidelines will pose significant public safety risks; risks that will be disproportionately felt in urban communities. Many of these offenders are among the most serious and violent offenders in the federal system and their early release at a time when violent crime is rising in some communities will produce tragic, but predictable results. These individuals could very well be released without the benefit of appropriate re-entry programs, increasing the risks of recidivism and further imperiling the safety of the communities to which they would return. Moreover, retroactive application of these penalties will be difficult for the legal system to administer given the large number of cases requiring resentencing and uncertainties as to certain key legal issues, such as the degree to which the prior sentence can be reduced. This increase would impose significant hardships on the federal judicial docket and risk delaying the timely administration of justice in both criminal and civil cases, while diverting law enforcement resources critically needed to fight violent crime. Prosecutors reasonably made their cases based on the sentences available at the time.

As a result, we think it is imperative for Congress to pass legislation to address the Sentencing Commission's decision. In calling for action, I emphasize that we are not asking this Committee to prolong the sentences of those offenders who pose the least threat to their communities, such as first-time, non-violent offenders. Instead, our objective is to address the Sentencing Commission's decision in a way that protects public safety and addresses the adverse judicial and administrative consequences that will result from retroactive application of these lower guidelines.

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